The Federal Republic of Germany sued the news magazine FOCUS for injunctive relief and correction because of a press article. The subject of the appeal proceedings was only the defendant's obligation to publish a correction.
In April 2005, the political magazine CICERO published an article by the journalist S. about the terrorist al-Sarkawi, through which detailed information from a secret report by the BKA became known. After the BKA had filed criminal charges for this and the editorial office and the journalist's private home had been searched (cf. BVerfGE 117, 224), an article appeared in the news magazine FOCUS, published by the defendant, in which it was reported, among other things, that in the desperate search for a leak, the BKA had apparently manipulated top-secret dossiers in order to find a leak in its own authority. To this end, before distributing the dossier to various units of the BKA, telephone numbers were, among other things, provided with inconspicuous number rotations.
The applicant claimed that the article alleged untrue facts about the BKA's handling of this file, which contained secret information from foreign intelligence services. This allegation was liable to diminish the reputation of the BKA in the eyes of the public because the impression was conveyed that the BKA used secret information in a manner contrary to its purpose and allowed it to be devalued by publication.
The Regional Court ordered the defendant to cease and desist and to correct. The appeal was unsuccessful.
The Federal Court of Justice confirmed the opinion of the Court of Appeal that eBay had a duty to prevent such infringements of the plaintiff's right to a name within the bounds of what was reasonable.
The VI Civil Senate, which is also responsible for the general right of personality, confirmed the appeal ruling. Civil Senate, which is also responsible for general personality rights, confirmed the appeal ruling and decided that a public authority can also be entitled to a right of rectification if the specific statement is likely to seriously impair the authority in its function. The Federal Supreme Court also affirmed the prerequisites for a claim for rectification because the court of appeal could assume the incorrectness of the statement for procedural reasons. Since the defendant had presented the facts as true, the Federal Supreme Court could leave open whether the prerequisites of permissible suspicious reporting would have existed.
Judgment of the Federal Supreme Court (BGH) of 22 April 2008 - VI ZR 83/07
Previous instances:
Hamburg Regional Court (LG Hamburg) - Judgment of September 1, 2006 - 324 O 932/05 Hamburg Higher Regional Court (OLG Hamburg) - Judgment of February 27, 2007 - 7 U 121/06
Source: Press release of the press office of the Federal Court of Justice of 22 April 2008
Goldberg Attorneys at Law, Wuppertal-Solingen 2008
Attorney at Law Michael Ullrich, LL.M.(Information Law)
m.ullrich@goldberg.de
